Opinion Number. 1396


Air Force
defence: validity of air force act 1923: power to constitute air force as separate service: defence power and incidental power

Key Legislation

Constitution s 51(vi), (xxxix): Air Force Act 1923

The Secretary, Department of Defence

The Secretary, Department of Defence, has forwarded the following memorandum for advice:

Section 51(vi) of the Commonwealth of Australia Constitution Act provides that—

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to—

(vi) The Naval and Military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth.

In 1923, the Parliament passed the Air Force Act, 1923, making the Air Force part of the Defence Force of the Commonwealth as constituted under the Defence Act, section 30.

It is now contended in certain circles that the passing of the Air Force Act 1923 is ultra vires, Parliament having no authority under section 51(vi) of the Commonwealth of Australia Constitution Act to make laws for any other than naval or military defence. In other words, Parliament had no power to constitute the Air Force as a separate service.

If such is the case the constitution of the Air Force as part of the Defence Force raised under the Defence Act is illegal and steps will need to be taken for amending section 51(vi) of the Commonwealth of Australia Constitution Act to include Air Defence.

This matter is forwarded for favour of an opinion by the Attorney-General’s Department.

The power of the Commonwealth Parliament to legislate in regard to defence was considered by the High Court in the case of Farey v. Burvett.1 In this case Griffith, C.J., expressed his opinion as follows:

As to the suggested limitation by the context, the words ‘naval’ and ‘military’ are not words of limitation, but rather of extension, showing that the subject matter includes all kinds of warlike operations.

Gavan Duffy, J., appeared to accept the view that the words ‘naval and military’ are words of limitation, but the other members of the bench were agreed in giving a wide interpretation to the provisions of the Constitution relating to defence.

It is not necessary, however, to rely only on placitum (vi) of section 51, as the power conferred by this placitum is supplemented by placitum (xxxix), which reads as follows:

(xxxix) Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.

It cannot be disputed, I think, that air defence is incidental to naval and military defence, and, in my opinion, the power to legislate in regard to air defence, if not conferred by section 51(vi) is conferred by section 51(xxxix).

I am of opinion, therefore, that the contention referred to in the memorandum of the Secretary, Department of Defence, cannot be supported.

[Vol. 22, p. 683]